Canadian Employment Law Today

June 30, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Harassment complaint followed by bad behaviour Question: Is it possible to discipline someone who files a harassment complaint for disrespectful or insubordinate behaviour in connection with the complaint? Ask an Expert Have a question for our experts? Email jeffrey.smith@keymedia.com STEWART MCKELVEY, HALIFAX with Brian Johnston Answer: It is possible, but uncommon. There has not been much consideration of this is- sue. Workplace policies on harassment and dis- crimination, as well as provincial and feder- al human rights legislation, prohibit employer retaliation where a complaint is filed. However, where a complaint or grievance is brought in bad faith, jurisprudence confirms that there may be just cause for discipline. Yet, while workplace policies and human rights legislation most often prohibit frivolous, vexa - tious complaints or bad-faith complaints, most do not consider the possibility of a complain- ant engaging in culpable behaviour during the processing of that complaint and whether or not that justifies discipline. The Manitoba Human Rights Code, for example, includes a provision which allows costs to be awarded against any party to a complaint if the investigation or adjudication has been frivolously prolonged by the con - duct of any other party — normally, parties pay their own costs. This is a hint that parties have an obligation to engage in the process of determining the complaint in good faith and co-operatively. Interestingly, no other pro - vincial human rights legislation, nor the Ca- nadian Human Rights Act, include a form of "punishment" for prolonging the procedure following a complaint in this way, either by way of costs or otherwise. The Manitoba provision has been consid - ered in two instances. In Walmsley v. Brousseau Bros Ltd., the province's Human Rights Com- mission ordered costs against a complainant who had both misrepresented the initial com- plaint and provided untruthful statements throughout the process, which caused un- necessary delay and prolonged the hearing. The complainant's employment had been terminated prior to filing the complaint, after he had committed a break-and-enter at the employer's premises. As a result, the issue of further discipline arising from the complain - ant's conduct throughout the proceedings did not arise. However, the decision makes clear that unco-operative conduct such as this ought not to be condoned and warrants, at the least, adverse cost consequences where permitted by legislation. Conversely, in the second instance, Jedrzejew - ska v. A+ Financial Services Ltd., three former independent contractors complained that both the company and its owner for whom they had previously provided services had harassed them. The complaints were allowed and costs ordered against the respondents for frivolously or vexatiously prolonging the adjudication. The respondents had failed to comply with a pro - duction order, causing the adjudication to be prolonged by at least one day and costing many hours to the trier of fact in attempting to recon- cile the evidence. However, as in Walmsley, the complainants were no longer affiliated with the respondent corporation and so the issue of dis- cipline did not arise. The purpose of a harassment policy is to protect employees from improper treatment. While employers are prohibited from retaliat- ing against employees who launch complaints of harassment, they are not prohibited from taking disciplinary actions against employees who launch complaints in bad faith. The pos- sibility of a chilling effect on potential harass- ment complaints, either under a workplace policy or under human rights legislation, should not be understated. While this is not a frequent problem, an employer could take dis- ciplinary action against an employee who has engaged in culpable or insubordinate conduct related to a complaint which has been filed. For more information see: • Walmsley v. Brousseau Bros Ltd (Super Lube), 2014 CanLII 31472 (Man. Human Rights Comm.). • Jedrzejewska v. A+ Financial Services Ltd., 2016 MBHR 1 (Man. Human Rights Comm.). Canadian HR Reporter, 2021 2 | | June 30, 2021 June 30, 2021 CREDIT: ANDREYPOPOV iSTOCK Employers are prohibited from retaliating against employees who launch complaints of harassment, but not from taking disciplinary action against employees who launch complaints in bad faith.

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